News and Analysis
Are You Liable for Overtime Pay for Work You Didn’t Authorize?
OMA Connections Partner, GBQ Partners, reported on a Seventh Circuit Court of Appeals ruling in favor of an employer in a case where a former employee sought five years of overtime pay for working unauthorized overtime.
While federal wage and hour law, and most state laws, place the obligation on employers to pay non-exempt employees for all time they work, including unauthorized overtime, this case is significant in that it found in favor of the employer.
This case was unique in that the employer had no knowledge of the overtime worked; read GBQ’s tips for setting and enforcing overtime policy.
Recent NLRB Ruling Prohibits Employers from Requiring Employees to Sign Arbitration Agreements that Forbid the Collective Pursuit of Employment-Related ClaimsJanuary 10, 2012
Recent NLRB Ruling Prohibits Employers from Requiring Employees to Sign Arbitration Agreements that Forbid the Collective Pursuit of Employment-Related Claims
The NLRB has made clear its position that class action waivers do not belong in the workplace, and requiring such a waiver as a condition of employment is an unfair labor practice. The decision, which applies both to union and non-union workforces, will most assuredly be appealed to a federal court of appeal. From OMA Connections Partner, Roetzel & Andress
Important Updates to Federal Trucking Regulations for 2012
OMA Connections Partner, Roetzel & Andress LLP, reports on two important new transportation industry rules, one restricts cell phone use and the other modifies some aspects of the hours-of-service regulations; both take effect in early 2012.
Effective January 3, CMV drivers are prohibited from holding, dialing, or reaching for a hand-held cell phone while driving a commercial motor vehicle. The ban includes a driver’s use of a cell phone’s push-to-talk function, which requires the continuous holding of a button. See the link above for details about allowed and disallowed communication practices under the new law as well as employee and carrier penalties for violations.
The Federal Motor Carrier Safety Administration has also published a new rule, effective February 27, 2012, relating to the hours-of-service requirements. The rule retains the 11-hour and 14-hour driving limits. However, it modifies the “34-hour restart,” clarifies the definition of “on-duty” time, and adds a new 30-minute break requirement under certain circumstances.
There are staggered compliance dates for different components of this rule, so check details at the link above.
Date for Required NLRB Posting Pushed to April
The National Labor Relations Board (NLRB) has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the Washington, DC federal court that is a legal challenge to the rule. The new implementation date is April 30, 2012.
Most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date of April 30. The notice is available at no cost from the NLRB through its website, www.nlrb.gov/
Readers will recall that the National Association of Manufacturers’ brought suit against NLRB contesting its jurisdiction to require the posting that describes employees’ rights to organize.
NLRB FInalized Quickie Election Rule Before Year End
As predicted, the National Labor Relations Board (the “NLRB” or “Board”) published a final rule amending its union election process.
The “quickie, or ambush, election” rule, which the Board rushed to finalize before losing one of its three remaining members at the end of last year, is expected to significantly change the process for contesting petitions for union elections and limit an employer’s opportunities to challenge the process before an election is held. It is scheduled to take effect on April 30, 2012.
The rule, which is opposed by the National Association of Manufacturers (NAM), may effectively shorten the amount of time in which union certification elections take place and could allow votes to occur in as little as 20 days. According to Joe Trauger, NAM Vice President of Human Resources Policy, “This is a continuation of dramatic overreach by the NLRB that is harming job creators. The Coalition for a Democratic Workplace, of which the NAM is a leading member, immediately filed a legal challenge to this rule in the federal court in Washington, D.C.”
Specifically, the rule would alter what types of pre-election hearings can be held and what types of appeals can be filed prior to an election. Per Trauger, “If certain matters can be discussed only after an election is held, these matters could become moot, leaving the employer with no voice prior to the election. We continue to explore all options the NAM has available to stop this attack on workplace election procedures.”
Read this analysis of the rule from OMA Connections Partner, Jackson Lewis.
Obama Fills NLRB Vacancies
President Obama announced this week his intent to recess appoint three individuals to serve as members of the National Labor Relations Board (NLRB).
The last day of Member Craig Becker’s service was January. 3. With the expiration of his appointment, the Board dropped to two members, Chairman Mark Gaston Pearce and Member Brian E. Hayes. The Board was last at its full five-member strength in August of 2010.
According to Joe Trauger, Vice President, Human Resources Policy, National Association of Manufacturers, “Under the Constitution, the President can exercise the recess appointment authority for those individuals already nominated, but have yet to be confirmed, when the Congress is in what is called a “recess” period. There is a question, however, as to whether the Senate was actually in a recess period … when the President made these appointments.”
Presuming they stand, these appointments will maintain a quorum that can continue the board’s pro-labor activism. Here is a good analysis from OMA Connections Partner, Jackson Lewis.
Employment Law: What to Expect in 2012
Employment law is a dynamic field with new legislation, new regulations, and new court decisions interpreting the laws. Here are several topics that should garner attention in 2012: From OMA Connections Partner, Roetzel & Andress
Quickie Election Rule Finalized Before Year End
As predicted, the National Labor Relations Board (the “NLRB” or “Board”) has published a final rule amending its union election process. The “quickie election” rule, which the Board rushed to finalize before losing one of its three remaining members at the end of the year, will significantly change the process for contesting petitions for union elections and limit an employer’s opportunities to challenge the process before an election is held. It is scheduled to take effect on April 30, 2012. From OMA Connections Partner, Jackson Lewis.
Can You Require Job Applicants to Have Current Employment?
OMA Connections Partner, GBQ Partners, noted an emerging trend that employers may only be considering the employment applications of people who are already working.
Is it legal? On a federal level, it’s not clear yet and state laws continue to evolve. According to GBQ, the Equal Employment Opportunity Commission (EEOC) has not formally declared its position, but the issue is definitely on its radar screen. At the state level, New Jersey recently passed new legislation making it illegal to require that only candidates with current jobs may apply for employment, and other states are considering similar measures.
To minimize legal risk while maximizing resource-intensive candidate searches, GBQ offers these tips.
Free Legally-Approved Employment Forms Available from OMA
OMA provides free up-to-date reproducible forms to assist your human resource department, managers and supervisors. These forms comply with federal and Ohio laws and have been reviewed by OMA counsel Bricker & Eckler for compliance as recently as December 2011. Best of all, they are free of charge to you as an OMA member.
The reproducible forms offered: Application for Employment, Health Questionnaire/Physical Condition, Absentee Calendar/Bi-monthly Absence Review, and Vacation Schedule
Please read the special instructions to employers to protect your company when using these forms.